Paunovic v. OBI Seafoods LLC

THE HONORABLE MARSHA J. PECHMAN [5] UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON 7 MARIJA PAUNOVIC and DUSAN PAUNOVIC, individually and on behalf of all 8 NO. 2:21-cv-00884-MJP others similarly situated, 9 STIPULATED MOTION AND Plaintiffs, [PROPOSED] ORDER TO EXTEND 10 DEADLINES AND TRIAL DATE v. 11 NOTED FOR CONSIDERATION: OBI SEAFOODS LLC, an Alaska corporation, DECEMBER 8, 2023 [12] and OCEAN BEAUTY SEAFOODS LLC, an 13 Alaska corporation, 14 Defendants. [15] 16 I. INTRODUCTION 17 The parties, by and through their counsel, hereby jointly stipulate and move to extend the 18 Court’s consideration of their cross-motions for partial summary judgment, to extend the briefing 19 deadlines associated with those motions, and to extend the April 22, 2024, trial date in this 20 matter three months to allow the parties an opportunity to resolve this litigation through 21 mediation. Such additional time is also necessary for the notice administrator to send class notice 22 after a lengthy delay in obtaining H-2B workers’ mailing addresses from third parties. 23 II. BACKGROUND 24 A. Class Notice 25 On September 9, 2022, the Court certified the Pay Delay Class and the Quarantine Class 26 and ordered Plaintiffs to present a proposed notice plan within twenty-one days. ECF No. 135 at [27] 1 20. On September 30, 2022, Plaintiffs filed their proposed class notice plan. ECF No. 152. 2 Defendants opposed the plan, arguing that the proposed notice misrepresented the scope of the 3 Quarantine Class because it included workers at former Icicle Seafoods plants. ECF No. 157. 4 The Court ordered further briefing on this issue, ECF No. 162, and on February 9, 2023, ordered 5 that workers at former Icicle Seafoods plants starting on June 1, 2020, be included in the 6 Quarantine Class and receive notice. ECF No. 175. 7 Through rolling productions over the following months, Defendants produced multiple 8 Excel spreadsheets that combined to create a unified class list from which settlement 9 administrator, SSI Settlement Services, would send notice to members of the Classes. However, 10 in compiling this list, SSI and Class Counsel discovered that 420 Class members (nearly 20 11 percent of the Quarantine Class) had the same mailing address to a recruiting company in 12 Maryland called United Work and Travel (UWT), through which Defendants recruited H-2B 13 workers from outside the United States. Defendants approached UWT in September to obtain 14 direct residential mailing addresses for these workers, but UWT refused to provide them. 15 Defendants prepared a subpoena to force production of these addresses, but UWT agreed to 16 comply without the subpoena being served. UWT produced the addresses in October, which 17 were served on Class Counsel and thereafter sent to SSI. 18 On October 25, 2023, non-party Icicle Seafoods produced contact information for 19 hundreds of Class members who had worked at former Icicle Seafoods plants, and for whom 20 Defendants did not maintain records. Upon review, Class Counsel discovered that the addresses 21 for 312 of these Class members also had mailing addresses to UWT in Maryland. Class Counsel 22 immediately notified Icicle Seafoods’ counsel who agreed to obtain the direct mailing addresses 23 and produce them to Class Counsel. On December 1, Icicle Seafoods produced 153 of these 24 addresses but has been unable to obtain the remaining 159 from UWT. Icicle Seafoods’ counsel 25 has told Class Counsel that the remainder will be produced but has not provided a time frame. 26 Once these final addresses are obtained from UWT, SSI will send class notice. There will 27 then be a 60-day notice period for members of the Classes to opt-out or object. Following this 1 period, Plaintiffs’ damages expert will need to update his report to reflect anyone who has opted 2 out of one or both Classes before trial. 3 B. Mediation 4 While the parties have periodically discussed the possibility of resolving this litigation 5 through mediation, those discussions failed to gain traction. However, on November 6, 6 Defendant OBI Seafoods announced that its CEO, Mark Palmer, and CFO, Anthony Ross, would 7 be retiring from the company. Following this change in leadership, the parties again broached the 8 possibility of settlement, and on November 21, agreed for the first time to pursue resolution of 9 the case through mediation. The parties are currently working to find a mediator agreeable to the 10 parties and to schedule mediation at the earliest possible date, likely late January or early 11 February. 12 C. Cross-Motions for Partial Summary Judgment 13 On November 22, Plaintiffs filed a motion for partial summary judgment seeking to strike 14 seven of Defendants’ affirmative defenses. ECF No. 213. On the same date, Defendants filed a 15 motion seeking partial summary judgment as to Plaintiffs’ quarantine claim. ECF No. 215. The 16 response deadline for these cross-motions is December 11, and reply briefs are due December 17 15. Both motions are noted for consideration on December 15. 18 III. ARGUMENT 19 The Court’s scheduling order may be amended for good cause. Fed. R. Civ. P. 16(b)(4); 20 Doe v. Trump, No. 2:17-CV-00178-JLR, 2017 WL 1378504 , at *1 (W.D. Wash. Apr. 11, 2017); 21 see also Dkt. No. 22 at 3 (“The Court will alter these dates only upon good cause shown[.]”). 22 The Court’s scheduling order may be modified “if it cannot reasonably be met despite the 23 diligence of the party seeking” the modification. Johnson v. Mammoth Recreations, Inc., 975 24 F.2d 604, 609 (9th Cir. 1992) (quoting Fed. R. Civ. P. 16 advisory committee notes (1983 25 amendment)). 26 There is good cause to extend the Court’s consideration of their cross-motions for partial 27 summary judgment and extend the response and reply deadlines associated with those motions 1 pending mediation, and to extend the trial date in this matter three months to July 22. For the first 2 time in this lengthy and contentious litigation, the parties have a promising opportunity to 3 resolve Plaintiffs’ classwide claims through the use of a mediator. While previous attempts to 4 explore resolution through direct negotiation were unsuccessful, the recent change in 5 Defendants’ corporate leadership brings a new prospect that this case can be resolved before the 6 parties and the Court are required to do so at trial. Because of this new prospect, there is also 7 good cause to extend the briefing deadlines and consideration of the parties’ cross-motions for 8 partial summary judgment. Doing so would allow the parties to focus their energy on mediation 9 and would allow the Court to conserve judicial resources. 10 Finally, an extension of the trial date would allow adequate time for UWT to produce the 11 last remaining addresses for H-2B workers; for SSI to administer class notice; and for the 60-day 12 opt-out and objection period to pass. Even if UWT produces the remaining addresses in the 13 coming days and SSI is able to verify addresses, prepare the mailing, and get notice out within a 14 short time thereafter, the notice deadline would fall at the end of February, leaving very little 15 time for Plaintiffs’ damages expert and the parties to adjust to the changing Classes before trial. 16 The parties propose to notify the Court regarding the outcome of settlement discussions 17 within three days of the set mediation date. If settlement discussions are unsuccessful, the parties 18 will file their response briefs to their cross-motions for summary judgment within fourteen days 19 and file their reply briefs within seven days thereafter, noting the motions for consideration on 20 the same date. 21 Given these circumstances, the Parties agree and stipulate, subject to the Court’s 22 approval, to amend the scheduling order as follows: [27] 1 Event Original Deadline Proposed Deadline Notice to the Court regarding settlement 3 days after 2 discussions due N/A scheduled mediation 3 Response briefs to cross-motions for partial 14 days after summary judgment due (if settlement December 11, 2023 4 discussions fail) scheduled mediation 5 Reply briefs to cross-motions for partial 7 days after the summary judgment due (if settlement December 15, 2023 deadline to file 6 discussions fail) response briefs 7 All motions in limine must be filed by and noted on the motion calendar no earlier than 8 the third Friday thereafter and no later than March 21, 2024 June 20, 2024 the Friday before the pretrial conference [9] Agreed pretrial order due April 9, 2024 July 9, 2024 [10] Trial briefs and Proposed Findings of Fact April 9, 2024 July 9, 2024 11 and Conclusions of Law 12 Pretrial Conference April 16, 2024, at July 16, 2024, at Time TBD by Court Time TBD by Court [13] Trial Length 8 days 8 days 14 April 22, 2024, at July 22, 2024, at Bench Trial 9:00 AM 9:00 AM [15] STIPULATED TO AND DATED this 11th day of December, 2023. [17] TERRELL MARSHALL LAW GROUP PLLC LITTLER MENDELSON, P.C. [18] By: /s/Toby J. Marshall, WSBA #32726 By: /s/Rebecca Schach, WSBA #58018 19 Toby J. Marshall, WSBA #32726 Douglas E. Smith, WSBA #17319 Email: tmarshall@terrellmarshall.com Email: desmith@littler.com [20] Ryan Tack-Hooper, WSBA #56423 Rebecca Schach, WSBA #58018 21 Email: rtack-hooper@terrellmarshall.com Email: rschach@littler.com Eric R. Nusser, WSBA #51513 Derek Bishop, WSBA #39363 22 Email: eric@terrellmarshall.com Email: debishop@littler.com Jasmin Rezaie-Tirabadi, WSBA #60285 One Union Square 23 Email: jrezaie@terrellmarshall.com 600 University Street, Suite 3200 936 North 34th Street, Suite 300 Seattle, Washington 98101 [24] Seattle, Washington 98103 Telephone: (206) 623-3300 25 Telephone: (206) 816-6603 Attorneys for Defendants OBI Seafoods, LLC 26 and Ocean Beauty Seafoods LLC [27] Tamara Kenworthey, Admitted Pro Hac Vice [1] Email: tkenworthey@kenwortheylaw.com KENWORTHEY LAW PLLC [2] 137 Fifth Avenue, 9th Floor 3 New York, New York 10010 Telephone: (718) 344-5746 [4] Attorneys for Plaintiffs [27] 1 IV. ORDER 2 After reviewing the files and records herein, and the Court having been fully advised, and 3 for good cause shown, the Court hereby GRANTS the parties’ Stipulated Motion to Extend 4 Deadlines and Trial Date and sets the following new schedule: [5] Event Original Deadline New Deadline 6 Notice to the Court regarding settlement 3 days after N/A discussions due scheduled mediation [7] Response briefs to cross-motions for partial 8 summary judgment due (if settlement December 11, 2023 14 days after scheduled mediation discussions fail) [9] Reply briefs to cross-motions for partial 7 days after the 10 summary judgment due (if settlement December 15, 2023 deadline to file discussions fail) response briefs [11] All motions in limine must be filed by and 12 noted on the motion calendar no earlier than March 21, 2024 June 17, 2024 the third Friday thereafter and no later than [13] the Friday before the pretrial conference 14 Agreed pretrial order due April 9, 2024 July 9, 2024 15 Trial briefs and Proposed Findings of Fact April 9, 2024 July 9, 2024 and Conclusions of Law [16] April 16, 2024, at July 16, 2024, at Pretrial Conference 17 Time TBD by Court 1:00 PM 18 Trial Length 8 days 8 days April 22, 2024, at July 22, 2024, at 19 Bench Trial 9:00 AM 9:00 AM [21] IT IS SO ORDERED. [22] DATED this 11th day of December, 2023. [23] A [25] Marsha J. Pechman 26 United States Senior District Judge